"Please advise as to how Colorado plans to address the serious findings" writes Sessions

Attorney General Jeff Sessions says Colorado isn’t making good on its promises to stop marijuana from spilling over its borders, nor is the state keeping it out of the hands of kids.

Sessions raised “serious questions” about the state’s marijuana regulation and called on Gov. John Hickenlooper to remedy the situation in a letter obtained by The Cannabist. It is dated July 24 and arrived at the Colorado Capitol late Thursday, officials said.

The governors of at least two other states that have legalized adult-use cannabis also received letters from the attorney general addressing the efficacy of their respective state marijuana regulatory structures.

In his letter to Hickenlooper, Sessions cited data from a September 2016 report by the Rocky Mountain High Intensity Drug Trafficking Area (HIDTA), a federally funded agency operated by the White House Office of National Drug Control Policy. The report on the impact of marijuana legalization in Colorado claimed increases in highway patrol seizures, youth use, traffic deaths and emergency department visits since the state legalized adult-use sales of cannabis in 2014.

“These findings are relevant to the policy debate concerning marijuana legalization,” Sessions wrote. “… please advise as to how Colorado plans to address the serious findings in the Rocky Mountain HIDTA report, including efforts to ensure that all marijuana activity is compliant with state marijuana laws, to combat diversion of marijuana, to protect public health and safety, and to prevent marijuana use by minors.”

The letter’s structure and message were practically identical to that of a separate letter Sessions sent to Washington Gov. Jay Inslee, a correspondence that the Huffington Post obtained and reported late Thursday evening. Officials for Oregon Gov. Kate Brown’s office told The Cannabist late Friday that they also received a letter from Sessions, but declined to immediately provide it.

Notable passages in both the Colorado and Washington letters highlight where Sessions sees flexibility for federal enforcement actions under the 2013 Cole Memorandum — Obama-era guidance for how prosecutors and law enforcement could prioritize their marijuana-related enforcement efforts. Both letters cited bullet-pointed data from each region’s respective HIDTA.

“What is interesting here, however, is that Sessions’ accusations (are) that states are not complying with the Cole Memo, perhaps suggesting he is fine with the Cole Memo just not the previous administration’s enforcement of it,” said John Hudak, a drug policy expert and senior fellow with the Brookings Institution.

But as to whether he thinks Sessions is hinting at any forthcoming federal enforcement actions on marijuana in this new letter, Bolton said, “We don’t take it that way.”

“We want to engage in a dialogue with the attorney general, the White House, the Justice Department about the most effective ways that the state and the federal government can work together to protect our priorities of public safety, public health and other law enforcement priorities,” he said.

It’s unclear whether Alaska received similar correspondence to those received by Colorado, Washington and Oregon; inquiries from The Cannabist to the governor Bill Walker’s office were not immediately returned.

Federal-state conflicts

Sessions has taken a hard-line stance against state-level marijuana legalization efforts since his appointment as attorney general. His bellicose language has generated concern among legalization advocates that the Trump Administration might abandon the hands-off approach of the previous administration and increase enforcement actions of federal marijuana laws.

The Department of Justice Task Force on Crime Reduction and Public Safety, created earlier this year, was expected to review existing policies in the areas of charging, sentencing and marijuana. As of last week, Sessions received the recommendations from the task force, some on a rolling basis, and plans to announce policy changes “when appropriate,” Justice Department officials have told The Cannabist.

Any Justice Department interference in state-regulated marijuana regimes would be “unacceptable,” Washington state Attorney General Bob Ferguson said in a statement posted Friday:

I was disappointed by Attorney General Sessions’ letter, which relies on incomplete, inaccurate and out-of-date information on the status of Washington’s marijuana regulations. I’m also disappointed that he has yet to accept my repeated invitations to meet in person to discuss this critical issue face to face. If he does accept, I look forward to providing him with a more complete picture of the robust regulatory program that exists in our state.

Any action from the Department of Justice short of allowing our well-regulated, voter-approved system to continue is unacceptable. I will continue to defend the will of Washington voters.

Colorado Attorney General Cynthia Coffman said she will continue to defend Colorado’s marijuana laws.

“But at the same time, I have always said that legalized marijuana presents significant challenges and public officials need to remain vigilant,” she said in an emailed statement. “That’s the message I gave to officials from the White House and Justice Department when they visited our state last month, and that’s why my office has been responsible for some of the most significant marijuana busts in recent history. We cannot allow bad actors to use our laws as a shield.”

She added she is hopeful that Colorado can work in concert with federal officials.

“In recent years, Washington, D.C., has offered little leadership on this issue. Attorney General Sessions’ letter suggests new interest in a strong federal-state law enforcement partnership aimed at protecting public safety in this area, something I look forward to exploring.”

When Hickenlooper met with Sessions in Washington, D.C., in late April, the governor explained Colorado’s regulatory structure, and how officials are tracking data related to public health and safety concerns. Likewise, Hickenlooper outlined how state marijuana tax revenue is supporting enforcement efforts against illegal activity.

Two weeks ago, officials from the Justice Department and other federal agencies met with about 20 representatives from a variety of Colorado agencies involved in marijuana regulation. Colorado officials presented a slew of charts, data and information about marijuana regulation and how the state is addressing public health, safety and law enforcement concerns, according to presentation materials provided by Hickenlooper’s office in response to a public records request made last week by The Cannabist.

Sessions’ latest letter is a continuation of the dialogue between Colorado and federal officials, Bolton said.

“We take (this letter) as an opportunity to continue the conversation that we’ve worked on for the past several months,” Bolton said.

Data questions remain

Colorado officials are preparing a response, which will include a comprehensive review of the relevant data, Bolton said.

However, the state has been cautious about drawing hard conclusions about the correlation of marijuana to various public health and safety issues, he said. The data are still quite new and there needs to be greater points of comparison.

“I think we need to give it some time,” he said.

The HIDTA reports Sessions cited in his letters to Colorado and Washington have come under criticism in the past, and the law enforcement agencies compiling them are “notorious for using data out of context or drawing grand conclusions that data ultimately do not support,” Hudak said.

“This is an inappropriate use of data from the attorney general and shows an obvious disinterest in seeking the right answer that can advance effective public policy,” he said. “Instead, Mr. Sessions is committed to cherry-picking information that fit into his worldview. When it comes to Mr. Sessions and marijuana, ignorance seems to be a pre-existing condition, and he has no interest in seeking treatment for that ailment.”

Washington Gov. Inslee also criticized Sessions’ approach — and use of HIDTA data.

“While Washington has been successful in creating a tightly regulated marketplace and generating needed revenue for the state, challenges do remain,” he said in a statement. “Most importantly, marijuana remains a Schedule I controlled substance by the federal government. This determination affects all aspects of our state systems, from banking to research to consumer safety.

“It is clear that our goals regarding health and safety are in step with the goals AG Sessions has articulated. Unfortunately, he is referring to incomplete and unreliable data that does not provide the most accurate snapshot of our efforts since the marketplace opened in 2014.”

Officials for the Rocky Mountain HIDTA did not return multiple queries for comment.

Alicia Wallace joined The Cannabist in July 2016, covering national marijuana policy and business. In her 14 years as a business news reporter, her coverage has spanned topics such as the economy, natural foods, airlines, biotech, retail,...